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Pioneer In Pediatric Neurosurgery David Donahue Md Known For Surgical Excellence And Compassion
When David Donahue, M.D., made a visit to Texas in 1996 to explore the opportunity to join Cook Childrens medical staff, he never expected hed end up calling Fort Worth home. Having made several moves in as many years, he and his wife werent looking to uproot again. But after touring the facility and meeting the staff, the prospect of becoming the medical centers first full-time pediatric neurosurgeon and helping to pioneer the development of its neurosurgical program captured his attention and his heart.
I was blown away even then by the hospital and by the people here, Dr. Donahue said.
Twenty four years later, Dr. Donahue will retire from full-time practice on Dec. 15, leaving behind a legacy of expert surgical skill, innovation, continuous improvement and compassionate care.
Dr. Donahue has really been a pioneer in bringing pediatric neurosurgical care to the children of Fort Worth, North Texas and beyond, said James Cunningham, M.D., executive vice president and chief medical officer at Cook Childrens Medical Center. He came to Fort Worth after an impressive training resume and brought with him a keen intellect, advanced surgical skills, and a sense of innovation in the development of new and improved care for children.
I wouldn’t be here if Dr. McCallum hadnt invited me to come, Dr. Donahue said. Thats how it all started. The good will of that adult neurosurgical group to take on the care of children.
Humble At Heart
Patients Sing Praises
Female Trio Supports Ccpn And Each Other
Tara Allen and Teresa Baker joined Cook Childrens Physician Network three weeks after the world shut down due to the pandemic. Serving as assistant vice presidents of Primary and Specialty Services along with Veronica Tolley, the women oriented to the new organization and technical aspect of how everything functions through Zoom meetings, behind masks and even during a mandated quarantine.
I came from a high-risk state, so my first couple of weeks were spent in quarantine, Tara said. My CCPN family immediately offered to bring essentials to my hotel, and even though I had not met anyone in person, I felt part of the team right away.
From that moment two years ago, the three women have worked closely together every step of the way. They support CCPN which attracts and retains highly skilled physicians from around the United States and the world. The network began in 1995 and includes more than 700 primary care and pediatric sub-specialty physicians with offices in Tarrant, Denton, Parker, Johnson, Collin and Hood counties plus West Texas. CCPN has grown exponentially despite a pandemic, and the strength in this female trio has a lot to do with this phenomenal success.
I understood for the first time why doctors trained specifically in pediatric subspecialties are needed, Tara said. It helped me to connect the dots and truly understand the impact of the decisions Im making.
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D Additionally Only The Sovereign Authority Of The State May Define What Is And What Is Not A Lawful Means Or Process Of Dying
CCMC argues that Section 166.046 does not implicate state action in two other respects: first, that it merely codifies the existing private contractual right of a physician to withdraw from the physicianpatient relationship and, second, that it merely extends private medical peer review to prospective end-of-life treatment decisions to facilitate a natural and pain-free process of dying. Implicit in these arguments is that the decision to discontinue life-sustaining treatment is purely a private matter of professional medical judgment, albeit subject to state regulatory oversight. Because the treatment decision to discontinue life-sustaining treatment over the wishes of the terminally ill patient invokes not just the state’s regulatory authority over the private practice of medicine but also the state’s traditional and exclusive police power to determine what is and what is not a lawful means or process of dying, we disagree.
The State As Parens Patriae
To understand the application of this authority to the present circumstances, we must provide some background of its scope. ” Parens patriae , literally parent of the country, refers traditionally to the role of the state as sovereign and guardian of persons under legal disability.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez , 458 U.S. 592, 600 n.8, 102 S. Ct. 3260, 3265 n.8, 73 L.Ed.2d 995 ). “Traditionally, the term was used to refer to the King’s power as guardian of persons under legal disabilities to act for themselves.” Hawaii v. Standard Oil Co. of Cal. , 405 U.S. 251, 257, 92 S. Ct. 885, 888, 31 L.Ed.2d 184 . Under this sovereign authority, as to minors, “he state thus act upon the assumption that its parentage supersedes all authority conferred by birth on the natural parents, takes upon itself the power and right to dispose of the custody of children as it shall judge best for their welfare.” In re Barry , 42 F. 113, 118, 136 U.S. 597 , approved by and attached as appendix toEx parte Burrus , 136 U.S. 586, 59495& n.1, 10 S. Ct. 850, 853& n.1, 34 L.Ed. 500 .
As explained by the United States Supreme Court in Schall v. Martin , there are only two possible decision makers when contemplating the welfare of children, i.e., their natural parents and the state as parens patriae :
See Tex. Const. art. V, § 8 .
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Mother Has Shown A Probable Right To Relief Because Section 166046 Fails To Articulate Any Objective Evidentiary Standard Or Burden Of Proof For The Committee Review Process And Eschews Completely The Statutory And Constitutional Best Interests Standard For Terminally Ill Children
While reasonable medical judgment may inform the decision, the deciding factor is ultimately the individual liberty interest of the patient in deciding that a natural death is the best treatment option. By limiting the evidentiary standard for the committee’s decision solely to an ad hoc determination of whether the continuation of life-sustaining treatment is “medically inappropriate,” Section 166.046 excludes from the committee review process any consideration of the subjective interests of the patient or, when dealing with a terminally ill child whose parent’s rights have not been temporarily or permanently terminated, that parent’s determination of what medical treatment is in the child’s best interestsboth of which are procedural-due-process prerequisites.
When, however, the TADA extended the process to permit involuntary withdrawal of life-sustaining treatment without the consent of either the patient or her designated representative, the “medically inappropriate” standard left complete discretion to the reasonable medical judgment of the attending physician with the only check on less-than-altruistic medical coercion coming in the form of the committee review process. Suddenly, a deeply personal decision of overwhelming finality was no longer a deeply personal decision. In fact, Section 166.046 purposefully excludes any consideration of the patient’s personal decision.
Those factors include
Hunt
See Pope, supra , at 147 .
State Regulation Of The Lawful Means Or Process Of Dying Naturally Or Otherwise Is Distinguishable From State Regulation Of Private Medical Practice
CCMC argues that, by creating the committee review process and immunizing treatment decisions made thereby from civil liability and criminal prosecution, the Legislature merely established a “safe harbor” for private medical peer review decisions that the courts have already found do not implicate state action. We disagree because the committee review process of Section 166.046 involves the exercise of the state’s police power to regulate the lawful means or process of dying, naturally or otherwise thus, it is fundamentally different from ordinary medical peer review.a. State regulation of private medical peer review does not ordinarily constitute state action
The private medical peer review contemplated by Goss is easily distinguishable, however, from the medical peer review involved in overriding a patient’s refusal to consent to the withdrawal of life-sustaining treatment. The former regulates the private practice of medicine generally for purposes of public health the latter, despite being informed by the private practice of medicine, specifically regulates what constitutes a lawful means or process of dying for purposes of civil liability and criminal prosecution.
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A Terminally Ill Patients And Their Surrogate Decision Makers Including The Parents Of Terminally Ill Children Have Vested Constitutional Rights Protected By Due Process
A Section 1983 analysis requires us to identify the right that the plaintiff claims was infringed. Baker v McCollan , 443 U.S. 137, 140, 99 S. Ct. 2689, 2692, 61 L.Ed.2d 433 . Mother contends that the threatened action of withdrawing T.L.s life-sustaining treatment implicates T.L.s right to life and Mother’s parental right to care, custody, and control of her child.
CCMC argues that T.L.s right to life is not implicated here because even if it were to discontinue the medical treatment that is keeping her alive, her death would be caused by her underlying disease process, not the discontinuation of medical treatment. We have already rejected this argument in discussing the implications of Cruzan , Vacco , and Glucksberg.
Not only do terminally ill patients have a vested, fundamental right to decide whether to discontinue life-sustaining treatment, either individually or through surrogate decision makers, this right is subject solely to the state’s exercise of its parens patriae and police power functions to assure the circumstances prompting and ultimately effectuating the decision are lawful. Moreover, we have also shown that parents of terminally ill children have a derivative, yet just as vested, fundamental right to make such decisions for their children, again, subject solely to the same exercise of state authority.
The Attorney General puts it this way:
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B Most Medical Treatment Decisions Made By Private Health Care Providers Are Not Traditionally Or Exclusively Public Functions
Similarly, a majority of federal circuits hold that a private mental health care provider or entity is not a state actor when it involuntarily commits a mentally ill individual, even if the commitment is pursuant to state law and the individual is brought for treatment by officers of the state. For example, in Spencer v. Lee , the Seventh Circuit rejected the application of the public-function exception to a private physician and a private hospital because the involuntary commitment of the mentally ill is not traditionally or exclusively a function of the state. 864 F.2d 1376, 137982 . Citing Blackstone’s Commentaries on the Laws of England and noting that the “notorious lunatic asylum” of London nicknamed “Bedlam” actually started as a private institution, the court observed that the history of such involuntary commitments demonstrated they were not exclusively the prerogative of the state, but included private self-help. Id. at 138081 . The court explained that as a matter of practicality, and oftentimes self-defense or self-help, private action in such matters was necessary: “If a person displays symptoms of acute and violent mental illness, his family or physician in an appropriate case a passerby or other strangermay have to act immediately to restrain him from harming himself or others, and there may be no public institution at hand.” Id. at 1381 .
Declining to extend the reasoning of Estelle and Youngberg , the DeShaney Court explained that
Viii Mother Is Entitled To Temporary Injunctive Relief Pending Trial On The Merits
Mother has pleaded a valid Section 1983 claim and has shown a probable right to relief. If CCMC were allowed to withdraw life-sustaining treatment from T.L. before a trial on the merits can be had, Mother and T.L. will suffer permanent, irreparable damage. SeeCruzan , 497 U.S. at 283, 110 S. Ct. at 2854 . Thus, we conclude that the trial court abused its discretion by denying Mother’s request for a temporary injunction.
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Ii The Section 166046 Procedure
Because it is undisputed that Section 166.046’s committee review process applies to this dispute and is integral to understanding the factual background of the case, we preface our discussion of the facts with a summary of the process.
The TADA defines “ife-sustaining treatment” as
treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die. The term includes both life-sustaining medications and artificial life support, such as mechanical breathing machines, kidney dialysis treatment, and artificially administered nutrition and hydration. The term does not include the administration of pain management medication or the performance of a medical procedure considered to be necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain.
Tex. Health & Safety Code Ann. § 166.002. Section 166.046 of the TADA provides a set of procedures by which an attending physician may obtain immunity from civil liability and criminal prosecution for a decision to unilaterally discontinue life-sustaining treatment against the wishes of a patient suffering from a terminal or irreversible condition or against the wishes of the person responsible for the patient’s health care decisions. Id.§§ 166.045.046.
An “ttending physician” is “a physician selected by or assigned to a patient who has primary responsibility for a patient’s treatment and care.”Id.§ 166.002.
Id.Id.Id.
Id.§ 166.046.
Iv Standard Of Review And Law Applicable To Temporary Injunctions
A temporary injunction is an extraordinary remedy that does not issue as a matter of right. Butnaru v. Ford Motor Co. , 84 S.W.3d 198, 204 . Its purpose is to preserve the status quo of the litigation’s subject matter until a trial on the merits. Clint ISD v. Marquez , 487 S.W.3d 538, 555 . The status quo is “the last, actual, peaceable, non-contested status which preceded the pending controversy.” In re Newton , 146 S.W.3d 648, 651 .
To obtain a temporary injunction, an applicant must plead and prove a cause of action against the defendant a probable right to the relief sought and a probable, imminent, and irreparable injury in the interim. Butnaru , 84 S.W.3d at 204. The applicant bears the burden of production to offer some evidence on each of these elements, seeIn re Tex. Nat. Res. Conservation Comm’n , 85 S.W.3d 201, 204 , but she is not required to establish that she will ultimately prevail at trial on the merits, only that she is entitled to preservation of the status quo until then. Walling v. Metcalfe , 863 S.W.2d 56, 58 Brooks v. Expo Chem. Co. , 576 S.W.2d 369, 370 Millwrights Local Union No. 2484 v. Rust Eng’g Co. , 433 S.W.2d 683, 686 . Therefore, we do not consider the ultimate merits of the underlying case and “will not assume that the evidence taken at a preliminary hearing will be the same as the evidence developed at a full trial on the merits.” Davis v. Huey , 571 S.W.2d 859, 862 Burgess v. Denton Cty. , 359 S.W.3d 351, 359 n.35 .
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Tl V Cook Children’s Med Ctr
holding appellant stated viable cause of action and probable right to recovery on Section 1983 claim premised on imminent discontinuance of medical treatment, and remanding case for entry of temporary injunction to prevent the discontinuance of life-sustaining medical care pending trial
viewing maintenance of life as the status quo
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C Despite The Fact That Most Medical Decisions Do Not Involve State Action Only The Sovereign Authority Of The State May Override A Parent’s Refusal To Consent To Recommended Treatment For Her Child
Both traditionally and exclusively, a medical treatment decision made for a minor child, contrary to the desires of the child’s parents , is the sovereign prerogative of the state as parens patriae. Stated differently, if a parent refuses to consent to medical treatment recommended for the welfare of a child, the stateand only the statehas the sovereign authority to override the parent’s refusal and to consent to the recommended treatment on behalf of the minor patient. Ordinarily, an attending physician, being neither a natural parent nor parens patriae , cannot both recommend a course of treatment for a minor patient and then consent to the treatment so recommended on behalf of his patient. Extraordinarily, emergent circumstances excuse a physician’s administration of lifesaving treatment to a child in the absence of parental consent. But, uniquely, the committee review process established by Section 166.046 is the only means by which a physician may discontinue an ongoing course of life-sustaining treatment to hasten the natural death of a child over the objections of her parent. Absent parens patriae authority exclusively attributable to the state, such an action is without legal sanction and likely subject to criminal prosecution.